Standing Committee E

[Sir John Butterfill in the Chair]

Commissioners for Revenue and Customs Bill

Clause 31 - Functions

Question proposed [13 January], That the clause stand part of the Bill. 
Question again proposed.

John Healey: Thank you, Sir John, and I welcome you back to the Chair.
In discussing the clause, which sets out the functions of the Revenue and Customs Prosecutions Office and the director in particular, the hon. Member for Chichester (Mr. Tyrie) raised a concern that had been put to him by the Law Society. He explained its questions about the interaction between the clause and clauses 54 and 55 of the Serious Organised Crime and Police Bill currently also being considered in Committee. 
It may be helpful for the Committee and reassure the hon. Gentleman if I explain how clause 54 of the Serious Organised Crime and Police Bill links with the clause we are considering. It permits the RCPO director along with the Director of Public Prosecutions and the Lord Advocate, or a prosecutor delegated by any of them, to issue a disclosure notice. Such notices can be issued only if the director—in our case, of the RCPO—has reasonable grounds to believe that a person has committed a specified offence and that some other person has information that is relevant to, and will be of substantial value to the investigation of, that offence. 
Such a notice excludes from a disclosure notice material such as confidential banking information or personal records relating to any business or profession. The prosecutor would still not be able to authorise the use of coercive powers in relation to materials specified in the notice. If the material is not voluntarily provided in response to the service of the notice authorised by the prosecutor, an application must still be made to a magistrate for a warrant to enter and search premises and seize that material. 
It may help the Committee and the hon. Member for Chichester if I confirm the further assurances that the Under-Secretary of State for the Home Department, my hon. Friend the Member for Don Valley (Caroline Flint), gave to the Committee considering the Serious Organised Crime and Police Bill. The use of powers within Her Majesty's Revenue and Customs is subject to a wide-ranging review, which was announced by the Paymaster General. The new powers in the Serious  Organised Crime and Police Bill, which were trailed in ''One Step Ahead'', the White Paper on organised crime, will not be exercised for tax offences pending the outcome of that review of HMRC powers. That was confirmed by the Under-Secretary during Committee proceedings on that Bill. Furthermore, the use of such powers will be subject to guidance issued by the Attorney-General to ensure that they are used only where they are necessary and proportionate.

Andrew Tyrie: Will that guidance from the Attorney-General be in the public domain?

John Healey: It will indeed. The hon. Gentleman and the Law Society have expressed concerns that the powers relating to tax and excise offensives are wide ranging. That is because the offences in clause 55 to which he drew attention are listed generically and individual instances will inevitably vary in seriousness. Therefore, discretion must be exercised because not all such offences will require or justify the use of SOCAP special powers. That discretion will not be placed with investigators; it will be vested in prosecutors acting under the superintendents of the Attorney-General.
I have to say that the provision offers the necessary safeguards as well as the necessary transparency and it is in line with the overall rationale in the Bill for establishing the RCPO—in other words, it will ensure that there is an independent assessment of the merits of prosecution of HMRC business by lawyers. On that basis, I hope that the hon. Gentleman and the Law Society will be reassured and the Committee will accept the clause.

Andrew Tyrie: I have listened carefully to the Minister. I will think about what he said and discuss it with those who came to me. If I have further concerns, I will bring them for consideration on Report. I am grateful to the Minister.
Question put and agreed to. 
Clause 31 ordered to stand part of the Bill.

Clause 32 - Functions: supplemental

Amendment made: No. 63, in clause 32, page 16, line 8, at end insert 
 '(4) A power of the Director under an enactment to institute proceedings may be exercised to institute proceedings in England and Wales only.'.—[John Healey.] 
Clause 32, as amended, ordered to stand part of the Bill. 
Clause 33 ordered to stand part of the Bill.

Clause 34 - Conduct of prosecutions on behalf of the Office

Question proposed, That the clause stand part of the Bill.

John Healey: I shall speak briefly to the clause because I have one or two general points to make may that be of interest, particularly to the right hon. Member for Wells (Mr. Heathcoat-Amory), who is not yet in his place.
I draw attention to the clause because it is a new provision. It permits the director of the RCPO to appoint legally qualified persons who are not employed by him to institute, conduct and advise on prosecutions following HMRC investigations. Appointed persons will need to have the same legal qualification as RCPO prosecutors. The director may appoint such persons on a single set of proceedings or on a specified class of proceedings. Those persons must act in accordance with any instructions given by the director or a designated Revenue and Customs prosecutor. Such flexibility in staffing will be essential to the director, so that the director can properly meet all the requirements of the substantial number of prosecution cases that the RCPO is expected to conduct. 
Question put and agreed to. 
Clause 34 ordered to stand part of the Bill. 
Clause 35 ordered to stand part of the Bill.

Clause 36 - Confidentiality

Amendments made: No. 9, in clause 36, page 17, line 10, after 'Office', insert 
'in connection with any of its functions,'. 
No. 10, in clause 36, page 17, line 17, at end insert 
 '( ) does not apply to a disclosure made to Her Majesty's Revenue and Customs in connection with a function of the Revenue and Customs (within the meaning of section 21),'. 
No. 11, in clause 36, page 17, line 18, leave out 'criminal proceedings,' and insert 
'a criminal investigation or criminal proceedings (whether or not within the United Kingdom),'. 
No. 12, in clause 36, page 17, line 19, at end insert 
 '( ) does not apply to a disclosure which in the opinion of the Director is desirable for the purpose of safeguarding national security,'. 
No. 95, in clause 36, page 17, line 24, at end insert 
 '( ) Subsection (3) does not apply to the disclosure of information about internal administrative arrangements of the Revenue and Customs Prosecutions Office (whether relating to a member of the Office or to another person).'. 
No. 85, in clause 36, page 18, line 5, at end insert 
 '(10) In subsection (2) the reference to an enactment does not include— 
(a) an Act of the Scottish Parliament or an instrument made under such an Act, or 
(b) an Act of the Northern Ireland Assembly or an instrument made under such an Act.'.—[John Healey.] 
Clause 36, as amended, ordered to stand part of the Bill. 
Clause 37 ordered to stand part of the Bill.

Clause 38 - Expenditure

Question proposed, That the clause stand part of the Bill.

David Ruffley: I wish to probe the Minister on the question of costs, as there appears to be no provision for them in the Bill. That is mildly surprising because the Prosecution of Offences Act 1985 sets out in considerable detail the basis on which costs might be awarded in favour of the prosecutor, a defendant who may be acquitted or an accused who may be convicted. By analogy, the relevant clauses in the 1985 Act are section 16 for defendants, section 18 for the award of costs against the accused, and section 17 for prosecutors' costs. I thought it might be helpful to remind the Committee of the detailed regime for the award of costs. It is particularly in point to this clause because there are cost implications for the new body, and it would be helpful to hear from the Minister why provisions analogous to those in the 1985 Act are not in the Bill.
There could be resource implications for the body and the Government if costs are awarded to the defence in any prosecution brought by the body. The three cases in which a defence costs order could be made are where an information laid before a justice of the peace for any area charging any person with an offence is not proceeded with; or a magistrates court inquires into an indictable offence; or a magistrates court summarily deals with an offence and dismisses that information. Any person who is not tried for an offence for which he or she has been indicted for trial, and any person who is tried on indictment and acquitted on any account of indictment, would be in the frame for a defence costs order. 
For an accused, the analogy is with section 18 of the 1985 Act. In cases where any person is convicted of an offence before a magistrates court, or a Crown court dismisses an appeal against a previous conviction, or any person is convicted of an offence before a Crown court, the court may make an order for costs to be paid by the accused to the prosecutor, such as is just and reasonable. 
I will not detain the Committee with reference to the award of costs to the prosecutor. However, I have cited two examples of very specific costs orders that could be awarded. On the one hand, there is a defendant's costs when they are acquitted; and on the other, there are costs when an accused does not defend his or her actions satisfactorily and is convicted or perhaps loses an appeal. In such cases, there are resource implications for the body as it will incur expenditure. 
First, will the Minister explain why resource provisions have not been included in the Bill? It seems a strange omission. There may be a good reason for it and for not following the example of the 1985 Act. Secondly, if the deficiency is as I suggest, what measures will she take to remedy that in regulations or in any other manner?

David Ruffley: I did take counsel from the Clerk to the Committee last week about where it would be appropriate to make these remarks. He indicated that clause 38 was as good a place as any. I have done my homework.

Dawn Primarolo: The hon. Gentleman does not need to be so defensive. I was explaining my rush to catch up with him, as opposed to questioning whether he had raised the issue in the correct place. I am sure that you would have informed him if he had not, Sir John. As I understand it, the hon. Gentleman is raising questions with regard to the prosecution and defence clauses in the 1985 Act. That is dealt with in the Bill under clause 30 and schedule 3, which relate to Revenue and Customs Prosecutions Office costs. As a general principle, the 1985 Act applies across the board to all prosecutors, including the Crown Prosecution Service and the Serious Fraud Office.
The hon. Gentleman quite rightly asked me for details on the operation of, and accounting for, those measures under section 16 of the 1985 Act. He asked how it applies, how it would be accountable and why it is not included in the Bill. I ask for his indulgence as I say two things. The requirement to account for moneys does not need to be in the Bill in that it is accounted for within Government accounting. However, to be perfectly frank, he asked me some questions to which I do not have detailed responses at the moment. May I undertake to write to him speedily, giving him the answers about how section 16 applies and how it is accounted for? I undertake to write to him as quickly as possible so that if he is not satisfied, he will have enough time to return to the matter. I hope that on this rare occasion he will forgive me. He has caught me off guard on this issue. With his agreement, I will write to him. I will of course send the letter to all members of the Committee and to his hon. Friends in case they want to return to the issue.

David Ruffley: I am grateful for the Minister's graciousness in saying that she will write to the Committee after this sitting. She referred to section 16. I just want to emphasise that it is not so much that the prosecution costs would be costs awarded in favour of Her Majesty's Government in the broadest sense; in that sense, it is not a cost implication or resource implication that I am too bothered about. What I am concerned about is the award of costs to a defendant who is acquitted, or an accused who is convicted and for whatever reason has costs awarded against them, or an accused who is convicted, appeals and incurs further costs for the Government as a result of that appeal, which is then dismissed. 
The concern is not about prosecution costs, but about the costs of the defence and the accused, as set out in sections 17 and 18 of the 1985 Act. Those costs fall on the Exchequer and taxpayers, and while provision for them to be assessed may be lurking in the legal costs regime and other parts of the statute book—the test in the 1985 Act is that they must be just and reasonable—it would be useful for the Committee to understand how the new body will deal with prosecution costs when they are awarded against an accused. A costs order draws on the public purse and it would useful to understand the mechanics of that. I do not know whether there is a reference to the 1985 Act and clarification would be useful.

Dawn Primarolo: I want to be clear about what the hon. Gentleman is asking me. I believe that he wants to focus on issues such as when the Department's prosecution fails, giving rise to defence costs, and the Department appeals, giving rise to further defence costs. I believe that that is his particular point, although he is also interested in the general point and the criteria by which a decision is taken to pursue or not to pursue a case. That is what I am trying to respond to.

David Ruffley: The right hon. Lady elegantly clarifies my point. To take it one step further, there will be instances of an accused being convicted and wishing to appeal. The appeal may be won or lost, but in both cases there will be additional resource implications of going to appeal. It would be useful to understand the position. Whatever the outcome, there will be not just a compensation award to the accused for grievance and stress, but the additional costs of taking the first-instance decision, which the prosecuting authority did not like, to appeal. There would be two hits; the cost of the appeal to the prosecuting authority and the compensation award in favour of the accused. That would also be the case if a defendant were convicted on first instance but won an appeal with a defence costs order. In the case of an accused who subsequently won an appeal, the resource implications would arise not only from the award of a lump sum to the accused, but from the costs of that appeal. If an accused were convicted and subsequently lost an appeal, there would be no resource implications for the prosecuting authority because there would be no order on costs. However, there might be a cost implication from the appeal that the prosecuting authority would incur over and above the costs of the trial of first instance.
I hope that the right hon. Lady and I have teased out what we need to understand about the cost implications. It is not just the award of costs as a lump sum, which may or may not apply in the cases that I outlined, but the additional costs of going to appeal. The 1985 Act goes into considerable detail much more elegantly than my precis this morning, but that appears to be the model that has worked in the past for all other prosecutions and instances where there are defence cost orders, or orders awarded against the accused where they lose either at first instance or at appeal. Not to have it on the face of the Bill puzzled me  somewhat, though I know the right hon. Lady is assiduous in explaining to Committee after Committee why some things are not quite as we think. There is a lacuna in this legislation and I am happy for her to write in some detail, if she would be good enough to put my mind at rest. 
Question put and agreed to. 
Clauses 38 ordered to stand part of the Bill. 
Clauses 39 and 40 ordered to stand part of the Bill.

Clause 41 - Accounts

Amendments made: No. 13, in clause 41, page 19, line 20, leave out 'sums' and insert 'revenue'. 
No. 14, in clause 41, page 19, line 21, leave out 'sums' and insert 'revenue'. 
No. 15, in clause 41, page 19, line 23, leave out 'property accepted' and insert 
'liabilities satisfied by the acceptance of property'.—[Dawn Primarolo.] 
Clause 41, as amended, ordered to stand part of the Bill. 
Clauses 42 to 44 ordered to stand part of the Bill.

Clause 45 - Consequential Amendments, &c. Amendments made: No. 16, in clause 45, page 21, line 35, leave out 'or other instrument' and insert

', instrument or other document'. 
No. 17, in clause 45, page 21, line 40, leave out 'or other instrument' and insert 
', instrument or other document'. 
No. 18, in clause 45, page 21, line 44, leave out 'or other instrument' and insert 
', instrument or other document' 
No. 19, in clause 45, page 22, line 21, after 'instruments', insert 'and documents'. 
—[Dawn Primarolo.] 
Clause 45, as amended, ordered to stand part of the Bill.

Schedule 4 - Consequential Amendments

Amendments made: No. 61, in schedule 4, page 31, line 29, at end insert 
'Game Laws Amendment (Scotland) Act 1877 (c.28) 
 3A In section 11 of the Game Laws Amendment (Scotland) Act 1877 (no person to be prosecuted again for same offence) for ''the Inland Revenue'' substitute ''a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 except for paragraphs 2, 10, 13, 14, 15, 17, 19, 28, 29 and 30.''.'.— 
[Dawn Primarolo.] 
No. 30, in schedule 4, page 32, line 22, leave out 'The Commissioners for'. 
No. 31, in schedule 4, page 32, line 35, at end insert 
 '13A In Part I of Schedule 1 (declarations: general and special commissioners, &c.) for ``an offence relating to inland revenue,'' substitute ''an offence relating to a former Inland Revenue matter (being a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 except for paragraphs 2, 10, 13, 14, 15, 17, 19, 28, 29 and 30),''.'. 
No. 32, in schedule 4, page 33, line 17, at end insert 
'Health and Safety at Work etc. Act 1974 (c. 37) 
 (1) Section 27A of the Health and Safety at Work etc. Act 1974 (disclosure by Commissioners of Customs and Excise) shall be amended as follows. 
 (2) In subsection (1)— 
(a) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs'', 
(b) after ''obtained'' insert ''or held'', and 
(c) for ''by the Commissioners'' substitute ''by Her Majesty's Revenue and Customs''.'. 
 (3) In subsection (3) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs''. 
 (4) The heading to that section becomes ''Information communicated by Commissioners for Revenue and Customs''. 
No. 33, in schedule 4, page 33, line 17, at end insert 
'Health and Safety at Work (Northern Ireland) Order 1978 (S.I. 1978/1039 (N.I. 9)) 
 (1) Article 29A of the Health and Safety at Work (Northern Ireland) Order 1978 (disclosure by Commissioners of Customs and Excise) shall be amended as follows. 
 (2) In paragraph (1) 
(a) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs'', 
(b) after ''obtained'' insert ''or held'', and 
(c) for ''by the Commissioners'' substitute ''by Her Majesty's Revenue and Customs''. 
 (3) In paragraph (3) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs''. 
 (4) The heading to that Article becomes ''Information communicated by Commissioners for Revenue and Customs''.'. 
No. 64, in schedule 4, page 34, line 4, leave out paragraphs (b) and (c) and insert 
'(b) in subsection (2) 
(i) after ''instituted'' in both places insert ''by order of the Commissioners'', and 
(ii) after ''an officer'' insert ''of Revenue and Customs'','. 
No. 34, in schedule 4, page 34, line 10, at end insert 
 'In section 171 (offences and penalties) after subsection (4) (offence by body corporate) insert— 
 ''(4A) Subsection (4) shall not apply to an offence which relates to a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 (former Inland Revenue matters).''.'. 
No. 65, in schedule 4, page 34, line 10, at end insert 
 '19A In section 146A(7) (time limits), for the words from ''means'' to the end of the subsection substitute— 
''(a) in England and Wales, means the Director of Revenue and Customs Prosecutions, 
(b) in Scotland, means the Commissioners or the Procurator Fiscal, and 
(c) in Northern Ireland, means the Commissioners.'' 
 19B In section 150(1) (joint and several liability) for ''the Commissioners'' substitute ''the Director of Revenue and Customs Prosecutions (in relation to proceedings instituted in England and Wales) or the Commissioners (in relation to proceedings instituted in Scotland or Northern Ireland).''.'. 
 'In section 152(a) (power to compound offences, &c.) for ``compound any proceedings for an offence'' substitute ''compound an offence (whether or not proceedings have been instituted in respect of it) and compound proceedings''.'. 
No. 100, in schedule 4, page 34, line 10, at end insert 
 '19C For section 155(1), substitute— 
 ''An officer of Revenue and Customs or other person authorised by the Commissioners may conduct criminal proceedings relating to an assigned matter before a court of summary jurisdiction in Scotland or Northern Ireland.''.'. 
No. 66, in schedule 4, page 34, line 15, at end insert 
 '20A Sections 37 to 37B of the Police and Criminal Evidence Act 1984 (c. 60) (guidance, &c.) shall have effect, in relation to a person arrested following a criminal investigation by the Revenue and Customs, as if references to the Director of Public Prosecutions were references to the Director of Revenue and Customs Prosecutions.'. 
No. 35, in schedule 4, page 34, line 17, at end insert 
'Criminal Justice Act 1987 (c. 38) 
 (1) In section 3(1) and (2) of the Criminal Justice Act 1987 
(c. 38) (disclosure)— 
(a) for ''subject to an obligation of secrecy under the Taxes Management Act 1970'' substitute ''to which section 17 of the Commissioners for Revenue and Customs Act 2005 would apply but for section 17(2)'', 
(b) for ''the Commissioners of Inland Revenue or an officer of those Commissioners'', in each place, substitute ''Her Majesty's Revenue and Customs'', 
(c) for ''an offence relating to inland revenue'', in each place, substitute ''an offence relating to a former Inland Revenue matter'', and 
(d) for ''any member of the Crown Prosecution Service'' substitute ''the Revenue and Customs Prosecutions Office''. 
 (2) At the end of section 3 of that Act add— 
 ''(8) In subsections (1) and (2) ''former Inland Revenue matter'' means a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 except for paragraphs 2, 10, 13, 14, 15, 17, 19, 28, 29 and 30.''.'. 
No. 36, in schedule 4, page 34, line 17, at end insert 
 'Consumer Protection Act 1987 (c. 43) 
 (1) Section 37 of the Consumer Protection Act 1987 (disclosure by Commissioners of Customs and Excise) shall be amended as follows. 
 (2) In subsection (1)— 
(a) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs'', 
(b) after ''obtained'' insert ''or held'', and 
 (c) for ''by the Commissioners'' substitute ''by Her Majesty's Revenue and Customs''. 
 (3) In subsection (3) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs''. 
 (4) The heading to that section becomes ''Power of Commissioners for Revenue and Customs to disclose information''.'. 
No. 62, in schedule 4, page 34, line 17, at end insert 
'Debtors (Scotland) Act 1987 (c. 18) 
 21A The Debtors (Scotland) Act 1987 shall be amended as follows. 
 21B In section 1(5)(d) (cases where time to pay directions not competent) for ''the Inland Revenue'' substitute ''the Commissioners for Her Majesty's Revenue and Customs''. 
 21C In section 5(4)(d) (cases where time to pay orders not competent) for ''the Inland Revenue'' substitute ''the Commissioners for Her Majesty's Revenue and Customs''.'. 
No. 87, in schedule 4, page 34, line 36, at end insert
'Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)) 
 24A Article 85(3) of the Police and Criminal Evidence (Northern Ireland) Order 1989 shall cease to have effect.'. 
No. 37, in schedule 4, page 35, line 39, at end insert 
 ''(1) In section 91 of that Act (disclosure by Commissioners of Customs and Excise)— 
(a) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for her Majesty's Revenue and Customs'', 
(b) after ''obtained'' insert ''or is held'', and 
(c) for ''their functions'' substitute ''functions of Her Majesty's Revenue and Customs''. 
 (2) The heading to that section becomes ''Power of Commissioners for Revenue and Customs to disclose information''.'. 
No. 67, in schedule 4, page 36, line 8, leave out paragraph (b) and insert 
'(b) in subsection (2)— 
(i) for ''so instituted'' substitute ''instituted by order of the Commissioners'', and 
(ii) after ''an officer'' insert ''of Revenue and Customs'', 
(ba) subsection (3) shall cease to have effect,'. 
No. 38, in schedule 4, page 36, line 22, leave out 'the Commissioners for'. 
No. 39, in schedule 4, page 36, line 23, at end insert 
'for Her Majesty's Revenue and Customs,'. 
No. 88, in schedule 4, page 36, line 25, at end insert 
 'Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39) 
 38A (1) Section 30 of the Criminal Law (Consolidation) (Scotland) Act 1995 (disclosure of information) shall be amended as follows. 
 (2) In subsection (1)— 
(a) for ''subject to an obligation of secrecy under the Taxes Management Act 1970'' substitute ''to which section 17 of the Commissioners for Revenue and Customs Act 2005 would apply but for section 17(2)'', 
(b) for ''the Commissioners of Inland Revenue or an officer of those Commissioners'' substitute ''Her Majesty's Revenue and Customs'', and 
(c) for ''relating to inland Revenue'' substitute ''relating to a former Inland Revenue matter''. 
 (3) In subsection (2), for ''other than an enactment contained in the Taxes Management Act 1970'' substitute ''and is not information to which section 17 of the Commissioners for Revenue and Customs Act 2005 would apply but for section 17(2)''. 
 (4) At the end add— 
 ''(7) In subsection (1) above ''former Inland Revenue matter'' means a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 except for paragraphs 2, 10, 13, 14, 15, 17, 19, 28, 29 and 30.''.'. 
No. 68, in schedule 4, page 36, line 36, leave out paragraph (b) and insert 
'(b) in subsection (3)— 
(i) after ''instituted'' insert ''by order of the Commissioners'', and 
(ii) after ''an officer'' insert ''of Revenue and Customs'', 
(ba) in subsection (4) omit ''of Customs and Excise'','. 
No. 69, in schedule 4, page 37, line 11, leave out paragraph (b) and insert 
'(b) in subsection (2)— 
(i) after ''instituted'' insert ''by order of the Commissioners'', and 
(ii) after ''an officer'' insert ''of Revenue and Customs'', 
(ba) subsection (3) shall cease to have effect, 
(bb) in subsection (4) omit ''of Customs and Excise''.' 
No. 40, in schedule 4, page 38, line 1, leave out '4)' and insert '(5)'. 
No. 41, in schedule 4, page 38, line 15, at end insert
'Terrorism Act 2000 (c.11) 
 In section 121 of the Terrorism Act 2000 (interpretation) for the definition of ''customs officer'' substitute— 
''''customs officer'' means an officer of Revenue and Customs,''.'. 
No. 70, in schedule 4, page 38, line 20, at end insert 
'Anti-terrorism, Crime and Security Act 2001 (c. 24) 
 55A In section 53 of the Anti-terrorism, Crime and Security Act (Customs and Excise prosecution for a nuclear weapons offence)— 
(a) in subsection (1)— 
(i) for ''by order of the Commissioners of Customs and Excise'' substitute ''by the Director of Revenue and Customs Prosecutions or by order of the Commissioners for Her Majesty's Revenue and Customs'', and 
(ii) for ''if it appears to them'' substitute ''if it appears to the Director or to the Commissioners'', 
(b) in subsection (3)— 
(i) after ''instituted'' insert ''by order of the Commissioners'', and 
(ii) after ''an officer'' insert ''of Revenue and Customs'', 
(c) in subsection (4) leave out ''of Customs and Excise'', 
(d) omit subsection (6), and 
(e) for the heading substitute ''Revenue and Customs prosecutions''.'. 
No. 42, in schedule 4, page 38, line 29, at end insert 
'Employment Act 2002 (c. 22) 
 Section 5 of the Employment Act 2002 (functions of Inland Revenue) shall cease to have effect.'. 
No. 43, in schedule 4, page 39, line 21, at end insert 
 'In Schedule 8 to that Act (declarations) for ''an offence relating to inland revenue,'', in each place, substitute ''an offence relating to a former Inland Revenue matter (being a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 except for paragraphs 2, 10, 13, 14, 15, 17, 19, 28, 29 and 30),''.'. 
No. 71, in schedule 4, page 39, line 21, at end insert 
 '63A In section 451 of that Act (Customs and Excise prosecutions)— 
(a) in subsection (1), for ''by order of the Commissioners of Customs and Excise'' substitute ''by the Director of Revenue and Customs Prosecutions or by order of the Commissioners for Her Majesty's Revenue and Customs'', 
(b) for subsection (2) substitute— 
 ''(2) Where proceedings under subsection (1) are instituted by the Commissioners, the proceedings must be brought in the name of an officer of Revenue and Customs.'', 
(c) subsection (3) shall cease to have effect, 
(d) in subsection (5) for ''customs officer'', in each place, substitute ''officer of Revenue and Customs'', and 
(e) for the heading substitute ''Revenue and Customs prosecutions''. 
Dealing in Cultural Objects (Offences) Act 2003 (c. 27) 
 '63B In section 4 of the Dealing in Cultural Objects (Offences) Act 2003 (Customs and Excise prosecutions)— 
(a) in subsection (1)— 
(i) for ''by order of the Commissioners of Customs and Excise'' substitute ''by the Director of Revenue and Customs Prosecutions or by order of the Commissioners for Her Majesty's Revenue and Customs'', and 
(ii) for ''if it appears to them'' substitute ''if it appears to the Director or to the Commissioners'', 
(b) in subsection (3)— 
(i) after ''instituted'' insert ''by order of the Commissioners'', and 
(ii) after ''an officer'' insert ''of Revenue and Customs'', 
(c) in subsection (4) omit ''of Customs and Excise'', 
(d) omit subsection (6), and 
(e) for the heading substitute ''Revenue and Customs prosecutions''.'. 
Schedule 4, as amended, agreed to.

Clause 46 - Interpretation

Amendment made: No. 86, in clause 46, page 22, line 25, at beginning insert 
'except where otherwise expressly provided,'.—[Dawn Primarolo] 
Clause 46, as amended, ordered to stand part of the Bill.

Clause 47 - Repeals

Question proposed, That the clause stand part of the Bill.

David Laws: Good morning, Sir John. You deserve a break after that batch of amendments and clauses, so perhaps we can pause on the rather quaint clause 47. The explanatory notes tell us that clause 47
''repeals obsolete provisions either where the provisions were no longer relevant prior to the formation of HMRC, or where this Bill contains provisions that replace older statute.'' 
In one of the representations that the Committee has received, the Public and Commercial Services Union suggested that, in its view, the reasons for the repeal of some of those sections should be subject to greater scrutiny than would be available from reading the explanatory notes. In particular, the representation draws attention to sub-paragraphs (iii), (iv), (v) and (viii). 
Sub-paragraph (iii) relates to the repeal of a particular section in law that deals with the kidnapping of customs officers, and the explanatory notes indicate that in future 
''the conduct would be penalised as obstruction''. 
It would be useful to have more detail from the Paymaster General on the thinking behind the getting rid of that offence altogether. I have no doubt that there have been many kidnappings of customs officers, and it would be useful to know whether there have been any in recent years. Is she confident that penalising such conduct in the future as obstruction is satisfactory? 
The second sub-paragraph about which doubts have been raised is (iv), which deals with signalling to smugglers. That might have been relevant in the 1700s and 1800s, but may be less so today. Have any individuals been charged under that section in recent history? I am more confident than the Public and Commercial Services Union that the provision is no longer required, because the explanatory notes convincingly state that 
''the conduct in question constitutes an offence of being knowingly concerned in an attempt at evasion of duty or prohibition''.
It is therefore plausible that such offences might be covered under existing legislation. 
Sub-paragraph (v) is another area over which concerns have been raised about the deletion of existing provisions. It relates to a higher penalty where an offender is armed, and the explanatory notes state that 
''the provision has been overtaken by increases to the mainstream penalties for smuggling . . . and it is now the Firearms Act 1968 which provides for enhanced penalties for armed crime of all sorts''. 
That does not indicate precisely whether the effect of deleting this section would be to ensure exactly in law that any offenders previously covered by section 86 will automatically face a higher sentence as a consequence of being armed. I assume that that would be the effect, but clarification would be useful. 
The final sub-paragraph about which the Public and Commercial Services Union has raised concerns, and on which it would be useful to hear more, is sub-paragraph (viii), which deals with false scales. Again, that sounds like something of an historic relic, and it would be interesting to know whether there have been any recent prosecutions for false scales. Somewhat oddly, the explanatory notes state that, in the future, 
''in practice the use of false scales would be penalised as obstruction.'' 
I do not know whether that will have any implications for the penalties that would be imposed, both in respect of sub-paragraph (viii) on false scales and of sub-paragraph (iii) on the kidnapping of officers. We are told that both offences will be prosecutable as obstruction. Does the Paymaster General consider that to be sufficient, and would it have implications on the sentences that could be handed down for such offences?

Dawn Primarolo: I am surprised that the hon. Gentleman raises those points, because he answered himself by saying something like, ''I am sure these are very old powers that have probably been superseded elsewhere with enforcement powers that are slightly stronger.'' It is unusual, and somewhat refreshing, to hear him querying whether Customs has enough powers. It is normally the other way round; he is of the view that its powers are a little out of date or excessive. I shall deal with each query in turn.
The hon. Gentleman was right to refer to sub-paragraph (iii) and the question of kidnapping an officer. The offence goes back a long way and is superseded by clause 27 of the Bill with regard to the offence of obstructing an officer in the course of his duty and the repercussions of that. While I have been a Minister, there has been no record of a Customs officer being kidnapped. Should that occur, or should an officer be detained by an unauthorised person against their will, the Department would take it extremely seriously. It would be an obstruction, which would be prosecutable under the obstruction laws. 
Kidnapping goes back a long way, to the behaviour of some people who may have lived in the south-west—the region that contains my constituency and  that of the hon. Member for Yeovil—where they had an interesting and unhelpful relationship with Customs in previous centuries.

David Laws: Will the Minister write to us, stating whether there have been any prosecutions under the section in the last 10 or 20 years? Can she say whether prosecution for obstruction will include the ability to sentence people for the same period as under the existing measure, which relates to what sounds like the more serious offence of kidnapping?

Dawn Primarolo: The Bill aligns the penalties for all offences with the police counterparts for England and Wales. It has the same force and seriousness for customs officers as for police officers. We are all well versed in the consequences of obstructing a police officer in the conduct of his or her duty, and those penalties arise in relation to customs officers, too. I shall be happy to write to the hon. Gentleman about whether there have been any prosecutions under the obstruction arrangements; there have been none for kidnapping since I have been a Treasury Minister.
On the matter of signalling to smugglers, the hon. Gentleman is right again; the measure goes back a long way. The specific provision is no longer required. When we were considering the Bill, my hon. Friend the Economic Secretary and I thought that the Committee would expect us to remove statutes that were not being used and thus were no longer needed. 
The conduct in question is the offence of being knowingly concerned in an attempt at evasion of duty or prohibition and is arrestable under section 170(2) of the Customs and Excise Management Act 1979 and under the Police and Criminal Evidence Act 1984—PACE—as applied to Customs and Excise matters by the PACE application to Customs and Excise, which is in statutory instrument 1985 No. 1800. An officer may enter premises under section 17 of PACE to effect an arrest. Paragraph (v), section 86—concerning a higher penalty where the offender is armed—has been overtaken by an increase in the mainstream penalties for smuggling under the Customs and Excise Management Act 1979. The Firearms Act 1968 now provides for the enhanced penalties for armed crimes of all sorts. 
The hon. Gentleman's final point was about the use of false scales. Again, he is right; it is a penalty under the obstruction provisions. The penalties are enforceable by fine and imprisonment; the obstruction provisions for Customs and Excise officers in the course of their duties follow those provided for the police in England and Wales. 
It is perfectly clear that all these matters are dealt with elsewhere, giving the protection that we would rightly expect our customs officers to receive in pursuit of their duty. Neither the Economic Secretary nor I would do anything to undermine those processes. First, we need to ensure that our officers can carry out their duties on behalf of the House safely in all circumstances. If the very few circumstances in which they were challenged actually occurred, the penalties in the proposal have to be enforceable. The Economic  Secretary and I will continue to do everything in our power to ensure that those officers are properly protected. 
With those explanations, I think the Committee will agree that with legislation that goes back a very long time, the most recent powers are the most effective and should be used. Whenever possible they should be standardised for all law protection work. Customs matters have been aligned on that basis for some time and the Bill puts it beyond doubt by removing old legislation that is no longer used. 
Question put and agreed to. 
Clause 47 ordered to stand part of the Bill.

Schedule 5 - Repeals

Amendments made: 
No. 44, in schedule 5, page 41, line 30, at end insert— 
 'Employment Act 2002 (c. 22) Section 5.'. 
No. 72, in schedule 5, page 40, line 38, leave out '(2) and'. 
No. 73, in schedule 5, page 41, leave out line 9. 
No. 74, in schedule 5, page 41, line 16, leave out '(3) and'. 
No. 75, in schedule 5, page 41, line 19, leave out '(2),'. 
No. 76, in schedule 5, page 41, line 28, at end insert— 
 'Anti-terrorism, Crime and Security Act 2001 (c. 24) Section 53(6).'. 
No. 77, in schedule 5, page 41, line 31, at end insert— 
 'Proceeds of Crime Act 2002 (c. 29) Section 451(3). 
 Dealing in Cultural Objects (Offences) Act 2003 (c. 27) Section 4(6).'. 
No. 89, in schedule 5, page 41, line 5, at end insert— 
'Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12)) Article 85(3).'. 
—[Dawn Primarolo] 
Schedule 5, as amended, agreed to. 
Clauses 48 and 49 ordered to stand part of the Bill.

Clause 50 - Complaints and misconduct

Amendments made: 
No. 20, in clause 50, page 24, line 41, leave out 'three months.' and insert 'one month.'. 
No. 96, in clause 50, page 24, line 29, at end insert— 
 '(1A) In relation to an offence under section [Disclosure to prosecuting authority] committed before the commencement of section 282 of the Criminal Justice Act (short sentences), the reference in section [Disclosure to prosecuting authority](6)(b) to 12 months shall have effect as if it were a reference to six months.'.—[Dawn Primarolo] 
Clause 50, as amended, ordered to stand part of the Bill. 
Clauses 51 and 52 ordered to stand part of the Bill.

New Clause 3 - Disclosure to prosecuting authority

'(1) Disclosure is in accordance with this section (as mentioned in section 17(2)(b)) if made— 
(a) to a prosecuting authority, and 
(b) for the purpose of enabling the authority— 
(i) to consider whether to institute criminal proceedings in respect of a matter considered in the course of an investigation conducted by or on behalf of Her Majesty's Revenue and Customs, or 
(ii) to give advice in connection with a criminal investigation (within the meaning of section 31(5)(b)) or criminal proceedings. 
 (2) In subsection (1) ''prosecuting authority'' means— 
(a) the Director of Revenue and Customs Prosecutions, 
(b) in Scotland, the Lord Advocate or a procurator fiscal, and 
(c) in Northern Ireland, the Director of Public Prosecutions for Northern Ireland. 
 (3) Information disclosed to a prosecuting authority in accordance with this section may not be further disclosed except— 
(a) for a purpose connected with the exercise of the prosecuting authority's functions, or 
(b) with the consent of the Commissioners (which may be general or specific).'. 
 (4) A person commits an offence if he contravenes subsection (3). 
 (5) It is a defence for a person charged with an offence under this section to prove that he reasonably believed— 
(a) that the disclosure was lawful, or] 
(b) that the information had already and lawfully been made available to the public. 
 (6) A person guilty of an offence under this section shall be liable— 
(a) on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or 
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, to a fine not exceeding the statutory maximum or to both. 
 (7) A prosecution for an offence under this section may be instituted in England and Wales only— 
(a) by the Director of Revenue and Customs Prosecutions, or 
(b) with the consent of the Director of Public Prosecutions. 
 (8) A prosecution for an offence under this section may be instituted in Northern Ireland only— 
(a) by the Commissioners, or 
(b) with the consent of the Director of Public Prosecutions for Northern Ireland. 
 (9) In the application of this section to Scotland or Northern Ireland the reference in subsection (6)(b) to 12 months shall be taken as a reference to six months.'.—[Dawn Primarolo] 
Brought up, read the First and Second time, and added to the Bill.

New Clause 4 - Data protection, &c. `Nothing in sections 16 to [Disclosure to prosecuting authority] authorises the making of a disclosure which—

(a) contravenes the Data Protection Act 1998 (c. 29), or 
(b) is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).'. 
—[Dawn Primarolo] 
Brought up, read the First and Second time, and added to the Bill.

New Clause 5 - Disclosure of information to Director of Revenue and Customs Prosecutions

'(1) A person specified in subsection (2) may disclose information held by him to the Director for a purpose connected with a specified investigation or prosecution. 
 (2) Those persons are— 
(a) a constable, 
(b) the Director General of the National Criminal Intelligence Service, 
(c) the Director General of the National Crime Squad, 
(d) the Director of the Serious Fraud Office, 
(e) the Director General of the Serious Organised Crime Agency, 
(f) the Director of Public Prosecutions, 
(g) the Director of Public Prosecutions for Northern Ireland, and 
(h) such other persons as the Attorney General may specify by order. 
 (3) An order under subsection (2)(h)— 
(a) may specify a person only if, or in so far as, he appears to the Attorney General to be exercising public functions, 
(b) may include transitional or incidental provision, 
(c) shall be made by statutory instrument, and 
(d) shall not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament. 
 (4) In relation to a person if or in so far as he exercises functions in respect of Northern Ireland subsections (2)(h) and (3)(a) shall have effect as if a reference to the Attorney General were a reference to— 
(a) the Advocate General for Northern Ireland, or 
(b) before the commencement of section 27(1) of the Justice (Northern Ireland) Act 2002 (c. 26), the Attorney General for Northern Ireland. 
 (5) In the application of this section to Scotland, references to the Attorney General are to be read as references to a Minister of the Crown (including the Treasury). 
 (6) Nothing in this section authorises the making of a disclosure which— 
(a) contravenes the Data Protection Act 1998 (c. 29), or 
(b) is prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).'. 
—[Dawn Primarolo] 
Brought up, read the First and Second time, and added to the Bill.

New Clause 1 - Transfer of property held off-shore

'(1) The Treasury shall make a scheme identifying any rights and liabilities in property of the old commissioners which shall, by virtue of section 43, vest in the new commissioners and which is owned by any person resident or company registered outside the United Kingdom. 
 (2) A scheme may include consequential and incidental provision. 
 (3) A scheme shall include provision that any property identified therein shall be managed in accordance with best value. 
 (4) In this section— 
''best value'' means arrangements to secure continuous improvement in the way in which functions are exercised, having regard to a combination of economy, efficiency and effectiveness, and 
the expressions ''the new commissioners'' and ''the old commissioners'' have the same meaning as in section 43.'. 
—[Mr. Heathcoat-Amory] 
Brought up, and read the First time.

David Heathcoat-Amory: I beg to move, That the clause be read a Second time.
The new clause is tabled in my name and that of my hon. Friend the Member for Sevenoaks (Mr. Fallon), who cannot be here today because of his duties on the Treasury Committee. The purpose of both new clauses that we have tabled is to examine the provisions that have been made for future management of the property estate and the IT facilities of both the Revenue departments. New clause 1 would identify a scheme for managing the assets, and, indeed, liabilities, of the property of the departments, and to place a best value obligation on the new department, in line with what we understand the Treasury wants to achieve throughout the public sector. It should not be particularly controversial. 
The merger and the Bill should be an opportunity anyway to review the existing provisions for managing the assets in question. I do not think that the House should agree to a merger unless it is satisfied that the assets of the departments will be in good hands. However, I am afraid that the history of property management in the departments is not altogether happy, and it has engaged the critical attention and comments of the Public Accounts Committee. 
The departments put their property out to tender. It was a very comprehensive process, not just for the management but for the future ownership of the property. The tender was won by a company called Mapeley STEPS, a new company in the field. It is clear now that not much was known about it at the time. It was later discovered that one of the reasons why Mapeley STEPS could win the overall contract was that it had the advantage of being based offshore, in Bermuda, and was therefore receiving substantial tax advantages. It was, on the face of it, not very surprising when it beat its rivals to the management of that enormous property portfolio. 
Whether through innocence in the departments, lack of experience or failure to take advice—we do not know—the fact of the offshore tax advantages was simply not known at the time of the contract. Indeed, when it was spotted by others, the initial parliamentary answers given by the Treasury were misleading. That was, I am sure, an innocent oversight, and was corrected when it became apparent that the company concerned was based overseas. But I am afraid that it showed a startling lack of proper oversight by the Treasury in this enormous transaction, which will stretch forward for the next 20 years. We are not discussing a passing business arrangement of a revenue nature; this was a contract to place the whole property estate in private hands, managed by the private sector, for the best part of a generation. 
The affair attracted a good deal of parliamentary criticism, as I have said, but it is still not clear to me how it happened. The failures of management and oversight should perhaps have led to a more thoroughgoing review in the departments concerned. Perhaps something went on that Parliament was not told about. Clearly, the action that we understood to have been taken did not measure up to the scale of the problem. 
It seems that the National Audit Office made some projections about the cost to the Revenue departments of the new contract. It estimated that the so-called facility payment that makes up the bulk of the cost would run at £170 million per year. That would be the overall cost of all the works undertaken by Mapeley on behalf of the departments. That is not the total cost because the facility price, although the biggest cost, is not the only one. There are other costs, to do with new buildings, and pass-through costs; costs incurred by Mapeley that are simply recharged to the departments. The great bulk of the overall cost is the facility price. 
According to the figures that I have, over the first three years of the contract, instead of running at £170 million a year, the costs ran at £196 million for the first year, then £219 million, and then, last year, £233 million. Those figures are of course far in excess of what the National Audit Office projected at the time. The Paymaster General has written to my hon. Friend the Member for Sevenoaks to try to explain the figures, but it is not altogether clear to me that they are satisfactory. 
The Paymaster General points out that the National Audit Office estimate was an average over 20 years, but then writes that the actual cash payments are higher than this average in all years. I do not understand how, if they are high in all years, they can possibly reach that average. Perhaps there is an arithmetical complexity there that I have overlooked, but it seems that the earlier estimate was a pretty gross underestimate. 
Indeed, if the other costs that I mentioned, such as the pass-through costs, are added on, the costs are getting on for twice what the National Audit Office price stated. It seems that under the terms of the contract—or because of escalation clauses, indexation or whatever—the amount of money paid by the public sector is substantially higher than was expected at the time. Will the right hon. Lady enlighten us on that point? 
My main point is that merging the two departments should bring the opportunity for substantial savings; that is one of the reasons advanced for such a merger. Operations are to be consolidated, and presumably a number of physical changes will take place, as departments that have been separate move into the same building. Some examples of where that will definitely be the case have been given. One assumes therefore that provision was made for that possibility under the Mapeley STEPS contract. Will the Paymaster General tell us what was anticipated about that possibility, which has always been an option, when the contract was signed? 
The Treasury always has such matters under review—it certainly did in the last Government—and, as we know, the Treasury Committee has urged merger on the Government before. The possibility would  definitely have been foreseen, even if it was not a definite plan at the time of the signature of the contract. My question is about what we can trigger now to allow those savings in property to flow through and for lower payments under the Mapeley STEPS contract to be made by the merged departments. 
Finally, I revert to the terms of the new clause. It would require the Treasury to bring forward such a scheme, which would best be done by the publication by the Treasury of further details of the Mapeley STEPS contract, amended or adapted to take account of the merger. The new clause would also impose a best value obligation, which would sweep up many of the criticisms and suggestions made by the Public Accounts Committee and others after examining the history of the departments in managing their property, not always particularly well. 
Let us use this Bill and this merger as an opportunity for a changed approach. We have a contract before us, but my question to the right hon. Lady is about what savings she can assure us will flow through to the public sector as a result of the merger.

Dawn Primarolo: I start by correcting points made by the right hon. Gentleman in his opening remarks on the Mapeley STEPS contract and on how that company successfully secured the contract following a proper procurement process, which followed the Green Book. The right hon. Gentleman said that the company won the contract only because it was offshore, which enabled it to have the cheaper price. That was not the case; the possibility has been considered thoroughly by the NAO. All Government departments are perfectly capable of working out how the property market works, and therefore the relevance of the comparators. Mapeley STEPS was a successful bidder because it offered the best value for money.
The right hon. Gentleman touched on a number of points. There has been a great deal of public discussion about Mapeley STEPS—in particular about its tax arrangements, which I will touch on first. At previous Select Committee hearings—I do not think that the right hon. Gentleman was on the Committee at that point—the accounting officer acknowledged that mistakes were made; not in the procurement process but by the department in not recognising the connection between the procurement guidance and the Government's anti-avoidance agenda. 
That was corrected. The new Treasury guidelines are in place to prevent that from happening in future. Indeed, under the Revenue's ASPIRE contract, which is now in place and has been negotiated since the guidelines were changed, a movement offshore is an event that could provoke the termination of the contract. The contract with Mapeley is already designed to ensure that property is managed in accordance with best value. If the Treasury were to issue a scheme or direction that was not covered within the terms of the existing contract, any changes would be subject to negotiation and agreement with Mapeley. 
The right hon. Gentleman quoted the figures that I provided to the Select Committee. The £170 million that was given by the NAO is an indicative annual average of the facilities price payment over 20 years for the serviced accommodation element of the contract, as qualified by the NAO itself in the STEPS report. It was never expected that the facilities payment would be a straight-line payment each year. It does not reflect the actual changes to the estate since the contract was started, or the passed-through costs. 
The right hon. Gentleman quoted from the letter that I wrote to the hon. Member for Sevenoaks. The figures he used are contained in the letter, which explains the current discussions about the facilities price and the likely costs. I specifically answered in detail the questions raised about the average NAO facilities price, which is currently £170 million per contract year, and why that varies with regard to the current contract and the negotiations that are outstanding. That was written following a letter from the hon. Member for Sevenoaks to me on the 21 October and replied to on 24 November. All that information is in the public domain, and I would be happy to circulate my answers to Committee Members. 
There are other savings to the taxpayer. Significant flexibility is built into the contract, so that Mapeley will cover the risk of changes in the department's accommodation requirements—changes that have happened since the contract was signed and that will continue, notwithstanding the merger of the two departments, as the department's accommodation requirements change. If the department decides that it no longer needs to occupy a property, the risk of disposing of the leasehold or freehold transfers to Mapeley. 
That flexibility will be vital through the process of change and will serve the departments well within Her Majesty's Revenue and Customs. [Interruption.] I want to continue, then I will give way to the hon. Member for Chichester. It is therefore not clear that the new clause would lead to any savings or improvements in efficiency, economy or effectiveness. 
The proposed Treasury scheme seems a rather bureaucratic way of attempting to achieve what the accounting officers are already required to do, which is to administer public money wisely and carefully and to be subject to the scrutiny of Parliament. I cannot  remember how many times I have been before the Treasury Committee about the contract, as have both the accounting officers—including every year when the annual accounts are submitted, which is another opportunity for that Committee to scrutinise—and the Comptroller and Auditor General. 
While I am referring to the Comptroller and Auditor General and the Public Accounts Committee, perhaps it would be helpful to remind hon. Members what the department has done following the PAC's recommendations with regard to the contract. The department has been working closely with Mapeley to normalise service delivery, to deal with some of the legacy issues and to improve the performance management system. That is a reference to where new buildings and different facilities have to come under the contract, or where buildings that we had when the contract was signed were for some reason not included in the contract. 
On the settlement of the outstanding legacy issues, the NAO report recommended that the departments and Mapeley should conclude the current legacy negotiations and agree any required contract changes to allow movement towards a partnership approach to contract management. The initial indications from the PAC were that a significant improvement in Mapeley's performance must precede any revised contractual arrangement.

John Butterfill: Order. May I tell the right hon. Lady and other hon. Members that this is not an appropriate place for a discussion of the history of the Mapeley contract or an analysis of whether it has been good or bad? That has already been dealt with by the Public Accounts Committee and the National Audit Office. I therefore hope that right hon. and hon. Members will from now on confine their remarks to the desirability or otherwise of the new clause, rather than conduct a further historical analysis of the Mapeley contract, which is not appropriate for this Committee.

Dawn Primarolo: Thank you for that guidance, Sir John. Of course I will immediately stop pursuing the department's response to the requirements to ensure that the contract—

John Butterfill: Order. I am perfectly happy for the right hon. Lady to outline what the department may now be doing, in the light of the new clause. What I do not want—and what I will not allow any further—is any backwards and forwards debate about the desirability, efficacy or otherwise of the Mapeley contract.

Dawn Primarolo: Thank you, Sir John. I think that I have made my point with regard to the contract in question or any subsequent contract. The new clause is bureaucratic and unnecessary because the requirements of the accounting officer, Government resource accounting, the obligations on the NAO and on the department to respond, and the requirements for best value will ensure that all contracts are pursued on that basis. Members have disagreements with different aspects of the Mapeley STEPS contract, but there has never been any question of there being any  loss of value for money or that the Department did not get the best return possible for the taxpayer. In those circumstances, I simply take the view that the new clause is irrelevant.

Andrew Tyrie: I completely agree with you, Sir John; the key question is not about how a contract could have been satisfactorily negotiated, but about what lessons we can learn from that to ensure that the Bill is in such a shape that the same mistakes are not made again. That is the purpose of these new clauses. Can the Paymaster General really give an assurance that without them the legislation will ensure that we do not get a repetition of such failures? Can she assure the Committee that we will get ''best value'' from the estate, to borrow a phrase from new clause 2?

Dawn Primarolo: There is no question about it; this contract has supplied best value. That is made clear in the NAO report. It is also clear that the contract was conducted within all the requirements for procurement. [Interruption.] No; it was made absolutely clear in the reports of both the Treasury Committee and the NAO that all the responsibilities with regard to requirements to procurement, following the Green Book and within Treasury guidelines, were pursued and best value was achieved. The new clause merely duplicates what is already in place. Therefore, it is unnecessary. I cannot let it be asserted in Committee that somehow the contract did not provide best value and was not conducted properly, because the NAO report makes it clear that it was.

David Heathcoat-Amory: My misgivings have been increased rather than diminished by the Paymaster General's remarks. I do not want to trawl back through the Mapeley contract, but it is clear that neither the Treasury nor the Revenue had any real understanding of what they were signing up to. Finding out where the main contractor is actually located must be one of the elementary questions to address, as must whether the contractor is receiving tax advantages from being based in Bermuda, particularly as before Labour was elected to office it was very critical of individuals and companies avoiding tax by placing themselves offshore. However, as you suggested, Sir John, that is history, and the new clause is intended to ensure that things will be different under the new arrangements.
I looked again at the letter sent by the Paymaster General. It seeks to explain why the facility price, which is the bulk of the annual payment, has been substantially higher than was estimated at the time of the contract, and it points out that the NAO expert at the time did not take into account possibilities for new legislation, nor of additional buildings being taken on. I find that slightly strange, because new legislation is not always unexpected. The Bill before us is new, and therefore my initial question was whether the contract fully takes into account the possibility of Revenue department merger. I now understand that the contract has a kind of escalation clause and that additional costs can be taken into account, and  therefore the Mapeley payment goes out. I want to know whether there is symmetry in this, and if downward costs can also happen.

John Butterfill: Order. The right hon. Gentleman is straying back to the desirability or otherwise of the existing terms of the Mapeley STEPS contract. As I have already indicated, that is not the issue being debated by the Committee, nor is this the appropriate forum for that discussion. The Committee is debating whether it is necessary for us to have the new clause the right hon. Gentleman has proposed. I hope, therefore, that he will confine his remarks to that.

David Heathcoat-Amory: Of course I accept that, Sir John, but the contract is extant and runs for 20 years, so we are not simply talking about the years up to now since signature, but about what will happen from now on until the end of the contract—the remaining 16 or 17 years. That is highly relevant to the Bill and the new clause.
My question is a simple one: when the merged Revenue department comes into existence, consequential on the Bill becoming an Act of Parliament, is there a provision under existing arrangements for the payment to decrease? We know that payments have increased in recent years in response to additional legislation and additional buildings being taken on by the Revenue department. Is there a symmetry here, and, if not, can we ensure that the contract is changed to reflect the possibility of Revenue officials moving out of buildings to achieve the savings and economies that underlie the purpose of the merger?

John Butterfill: Order. The right hon. Gentleman is trying my patience. The Committee is not here to consider the existing Mapeley STEPS contract, or what may or may not happen in the future; it is here to consider the new clause. I will not allow the Committee to be used as an inquest on that particular contract.

David Heathcoat-Amory: I am not interested in the contract, but in what the new clause says. I can only refer to it. It says:
 ''The Treasury shall make a scheme identifying any rights and liabilities in the property of the old commissioners.'' 
I do not know how it is possible to make a new scheme without some reference to the contracts that bind the old commissioners. Will you accept that, Mr. Chairman?

John Butterfill: I am perfectly happy for the right hon. Gentleman to argue the case for such a scheme in the course of the clause. What I am unhappy about is a disinterment of all the detailed terms of the existing contract and its examination in detail by the Committee.

David Heathcoat-Amory: Well, I will just have to rephrase my question in terms of the new clause. Will the Treasury make a new scheme—we will call it Mapeley II—to identify the obligations of the old commissioners, that is, of the existing Revenue departments, and will those payments under the new  scheme provide for reductions in the annual payment consequential on the anticipated savings when the new Revenue departments merge into one?
We have seen that the existing contract provides for escalation of costs. I wish to know whether there is provision for decreasing them. That is the scheme that my new clause calls for. I am therefore, it seems to me, entirely in order in asking the Paymaster General what existing contractual arrangements may prevent such a new scheme taking effect.

Dawn Primarolo: Briefly, I told the right hon. Gentleman in my opening remarks that the contract gave significant flexibility so that Mapeley will carry the risk of changes to departments' accommodation requirements. I went on to specifically point out the risk of disposing of leasehold or freehold, as an example, once the departments had said that the accommodation was no longer required. I can confirm, again, that the contract provides the opportunity to realise the benefits of the merger through rationalisation of the estate. The contract was designed specifically to do that. The departments contract and grow. When they contract, their costs reduce; when they grow, they increase. Parliament is informed of all of that. Unlike previous contracts, this contract provides for both reductions and increases within the negotiated terms.
The right hon. Gentleman comes back with his basic premise that there was a failure, and that lessons therefore have to be learned and new procedures are necessary. My contention is that there was not a failure, and the Comptroller and Auditor General also takes that view. On 7 May 2004, he said that the department had got an exceptionally good price for a deal that should bring a range of benefits. He went on to mention the very important point that there are risks to such a keenly priced deal, which the department must manage very carefully if it is to realise its full value. 
I have explained, without trying to try your patience too much, Sir John, that those matters have been taken forward and therefore that the clause is not required. The accounting officer, the requirements of all departments for value for money, the view of the National Audit Office and their ability to investigate all successfully worked in this case, will work in future cases and the recommendations are being taken forward as well. Therefore the right hon. Gentleman does not need his new clause, because the mechanisms are already in place. If he wishes to put it to vote, I will ask my hon. Friends to oppose it.

David Heathcoat-Amory: It has to be dragged out of them, does it not? I think, however, that we are now a little bit clearer about the arrangements for the future, which are consequential on arrangements for the past. In light of the more recent comments of the right hon. Lady, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.

Column Number: 130

New Clause 2Information technology

Information technology

'(1) The Treasury shall make a scheme identifying any information technology system owned or operated by the old commissioners which shall, by virtue of section 43, vest in the new commissioners. 
 (2) A scheme may include consequential and incidental provision. 
 (3) A scheme shall include provision that any information technology system identified therein shall be managed in accordance with best value. 
 (4) In this section— 
''best value'' means arrangements to secure continuous improvement in the way in which functions are exercised, having regard to a combination of economy, efficiency and effectiveness and 
the expressions ''the new commissioners'' and ''the old commissioners'' have the same meaning as in section 43.'.—[Mr. Heathcoat-Amory] 
Brought up, and read the First time.

David Heathcoat-Amory: I beg to move, That the clause be read a Second time.
The terms of this new clause are similar to those of the one that we were just discussing. They refer again to any information technology systems owned or operated by the old commissioners, so I hope that you, Sir John, will not judge me out of order if I refer, at least, to recent, if not ancient, history. That is included in the terms of the new clause. 
The information technology story is not wholly dissimilar to the one that we have just been discussing in that it is punctuated by a number of procurement problems, and I am talking about the generality of the public estate. We all, as Members of Parliament, suffer as a result of the Child Support Agency computer failure. The problems are not unique to the Revenue department, but they are particularly important there because all of us, in one way or another are either taxpayers or are in receipt of benefits now administered by the Inland Revenue. 
I draw the Committee's attention to the comments of the tax faculty of the Institute of Chartered Accounts in England and Wales, which were submitted as evidence to the Treasury Committee, of which I am a member. Perhaps I should declare an interest. I am a chartered accountant but I had nothing to do with that evidence. I also do not practise as an accountant or as a tax adviser, except to my occasionally bemused constituents who have to grapple with such problems. 
The evidence referred to information technology problems as they exist. It said that many of the problems of the tax system appear to emanate partly from IT inputting of data and partly from the computer programming, which was categorised as poor. The particular example that was given was of the tax credit system, and it was pointed out that the computer system in the Inland Revenue does not show how the credit has been calculated. The tax faculty of the ICAEW was surprised that no one thought that this was necessary at the time that the computer was set up and installed. 
 ''The result of these types of problems is that few people have much confidence in the Revenue's computer systems.'' 
That is a harsh criticism, but I think that it is generally fair. 
 All of us who, in our various ways, have to grapple with the Inland Revenue on behalf of our constituents know that the tax credit system was brought in with inadequate preparation. Indeed, there are continuing problems. The question is whether the merger under the Bill will make those problems better or worse. 
 Again, the evidence given by the chairman designate of the new department is not altogether reassuring. Mr. Varney referred to 250 major IT systems in the two departments. He said that they ''have 3,000 staff'' working in IT and that they send out 170 million forms a year. He said that 
''we run 100 thousand desktops. So it is a big issue for us.'' 
I think that that was said without fear of exaggeration. 
Mr. Varney also commented on the general issue of computer management. He said: 
 ''We also have to get smarter at our pre-risking and big risk minimisation projects, talking through both the IT risk and the operation.'' 
I am not completely clear what that means. I am afraid that it is a feature of all public servants that they fall into a terrible form of jargon when trying to explain such matters. 
 It does not get any better, because when Mr. Varney was asked by the Select Committee when an integrated system was due to take place, he said: 
 ''So some of these projects are mission critical for both delivering cost and service objectives. I think we will bring what we want to bring because we bring the management potential and the discipline to the problem of investing in technology.'' 
I think I know what he means: the body will do its best to make it all much better in future. 
Mr. Varney is a very able man, and he is certainly trying to do the right thing, but he is grappling with two very different systems. There is a reference in my new clause to the old commissioners. They have their own information technology systems, administering different taxes with a different culture; we have observed that at various times in our proceedings. There is not only a different culture, but different contractors. Customs and Excise has a contract with Fujitsu, whereas the Inland Revenue has signed the ASPIRE contract with what is called a new strategic partner, Cap Gemini Ernst & Young. So two reasonably recent very big IT contracts have been signed with different suppliers. They seek to do different things and I would imagine that, under the terms of the contracts, it is not possible for one to give way to the other. 
What will happen in the new merged department? Will we simply bring together the two different sets of IT facilities; all 250 major systems, as the chairman-designate described them? How are they to be managed for the benefit of the public, particularly  when the departments have to keep their existing duties going? It is not a question of saying, ''Down tools and let's design something different.'' The departments have to continue with their existing collection and payment functions, as well as design an integrated system with the promised economies. 
The purpose of the new clause tabled by my hon. Friend the Member for Sevenoaks and me is to produce a plan. There are two plans and two contracts at the minute, as well as myriad different systems. We want a single plan, because we certainly have not seen one. One of the Treasury Committee's criticisms when taking evidence was that although Gus O'Donnell made a report into the reason for the merger—and a way ahead was identified on that—it is not a detailed plan. It certainly does not go into the interstices of the department in trying to discover what systems it is running, and whether it is even possible, under the terms of the contract, to get a uniform or integrated IT management system. Many of the supposed benefits to the public purse and to taxpayers of the merger will be lost unless there is a plan to bring the IT systems together, perhaps not immediately but over time. 
What provision was made in the existing contracts for the eventuality of a merger? Does a plan exist to adapt them to the new circumstances envisaged under the Bill, and what savings does she anticipate from that plan? It is entirely appropriate to impose a best value obligation on the new department, and indeed on the Treasury. It is not an adequate response simply to say that the public sector pursued best value anyway. I am afraid that the history of both the property and IT systems is littered with examples of aspirations—but not obligations—to pursue best value, and when the targets are not met, no one suffers apart form the tax-paying public. That is the purpose and reasoning behind my new clause, and I look forward to the Paymaster General's response.

Dawn Primarolo: The right hon. Gentleman was a Treasury Minister, and I presume he knows the rules with regard to accounting officers. Because the legislation went through this House, he would be familiar with the obligations on Government accounting.
I would absolutely acknowledge—I do not think that there is any individual within Government or business that would not acknowledge—that vast computer systems take a great deal of management and understanding. There are times when those systems do not operate as they should. That was true under the previous Government, with the NIRS contract, which was signed just before the general election in 1997. The right hon. Gentleman referred to some points made about self-assessment, which was entirely commissioned under the previous Government. Then he referred to several computer systems that are not in the new department, and to the tax credit, which is. 
I feel duty-bound to say that clearly, because the right hon. Gentleman was excessively harsh on the officials who work in those departments. I would like to put on record how much I and my hon. Friend the Economic Secretary value the staff in the two  departments, and their hard work in delivering for Parliament the demanding and stretching requirements placed on them for the discharge of their duty. 
The scale of the IT contracts is important. The idea that those people are cavalier in their attitude to best value for the taxpayer and do not discharge to the best of their ability the requirements dictated by Parliament needs to be rebutted strongly. Regardless of what the right hon. Gentleman may assert in this Committee about the contracts for the department, the best-value reports done during the commissioning of those projects has demonstrated that that is the case. 
Now there is an immense task, as the right hon. Gentleman rightly points out, in bringing together the 250 legacy systems in the two departments. There is not one system in one department and one in the other. There are systems that overlap, that do not overlap and that have been merged into the department; for instance, the Contributions Agency and the NIRS2 contract, which was specified under the previous Government. Some of the contracts will stay as they are and others will be able to be integrated. We need to look very carefully at how the department will proceed. 
Because people like to quote things that have not gone well, let us first congratulate the department, for instance, on the ASPIRE contract; the change of the IT supplier, after open, fair competition and a well run contract, from EDS to the new Cap Gemini Ernst & Young and its associated partners. The contract involved not only the management of the competition, but the proper transfer of those substantial systems from EDS, the previous contractor, to Cap Gemini Ernst. The transition is complete and has gone well. I would like to put on record what I have said in private as a Minister and what I hope this Committee will endorse; our thanks. Congratulations should be given when something has gone exactly as it should. 
In looking at how the ASPIRE contract and the contract of Customs with Fujitsu, the consideration had to be as it was with the property contract. Whether or not the departments merged, modern contracts must have flexibility. The lessons that we learnt from the NIRS2 system, for example, which was commissioned under the previous Government, was that, if we do not have flexibility in the contracts to manage change, we will have increased difficulties in moving those systems forward and getting them to respond to our needs. 
Let us consider the general principles that will take us forward. It is clear in the Bill, and has been explained, that a system of benchmarking will be used. It was used in ASPIRE and it is now being used in Fujitsu. What do we mean by that? I shall cite the example of ASPIRE to demonstrate the principles that will take us forward. The benchmarking process will be carried out for the first time two years into the contract. It will be based on comparing prices and services against levels in the industry standards, which external companies will undertake. That mechanism  was carried out also in the beginning to ensure a good contract price. The same process will be undertaken with regard to the Customs systems. The first benchmarking process of the infrastructure services agreement for Customs is being carried out now and, as one would expect, that has an element of market testing. 
In all the negotiations on ASPIRE and on the expansion of Customs contracts when needed, the principles are about continuity of service provided to the taxpayer. The negotiations had to be conducted in the knowledge of the O'Donnell review that was underway at the time and that flexibility had to be provided. Both contracts will be transferred to HMRC, subject, of course, to parliamentary approval of the Bill. We are reviewing the best commercial models for the new department to take that forward. 
The matter of the IT systems is extremely complex. Parliament, for all sorts of reasons—not only for historical reasons—will want to continue to consider such matters closely. They will be subject to the Treasury Committee, the PAC and the requirements in respect of annual accounting. As I said when discussing new clause 1, all the mechanisms are in place. The new department will have a change management mechanism with a new chief information officer who has been appointed. Interfering with computer systems when that has not been taken into consideration could have dire effects on the revenues collected by the two departments. We do not have to be geniuses to work out that. 
While considering integration, part of what the department must do is to make sure that it maintains business as usual and it should not lose its focus on delivering that. The new department will have a change management mechanism with a new chief information officer who has been appointed. Those involved will have to work closely to ensure that the public service agreement targets are met and that a strategic overview of both risk and risk mitigation is maintained. That means understanding the possible risks and managing them to achieve integration. 
The department will have in place mechanisms for dealing with such matters, mechanisms that are checked by parliamentary rules and those rules that govern accounting officers. When the right hon. Gentleman spoke to new clause 1, he said that it was proposing the same mechanism, one on property and one on IT. My response to him about IT is the same as my response on property; the mechanisms are in place. The department has a great deal to do. There is no point in duplication and bureaucratic mechanisms in order to copy what has already been done elsewhere. On that basis, if the right hon. Gentleman wishes to press new clause 2 to a Division, I will ask my hon. Friends to oppose it.

David Heathcoat-Amory: I think that we have gone as far as we can on this issue. We have had some rather familiar reassurances from the Treasury about how it is all going to be different and well managed in future  and how things are in place to ensure that, but we have not had a plan. The Treasury Committee criticised the fact that we have an aim, aspirations and a destination, but there are no milestones on the road to ensure that we get there in good order with a saving to the public and improved facilities for the tax-paying public.
I am a little bit more optimistic about IT. I do not think that the revenue departments were stitched up in their contract as they were with the Mapeley contract. That is the last time I shall mention that, Sir John. I have the assurance that the chairman-designate and his staff and the Treasury are fully engaged with the importance of IT. We shall be watching carefully in future to ensure that the savings and contract variations are possible and deliver what they promise. However, in the light of what the Paymaster General has said, and with one eye on the clock, I beg to ask leave to withdraw the motion. 
Motion and clause, by leave, withdrawn. 
Question proposed, That the Chairman do report the Bill, as amended, to the House.

Dawn Primarolo: I am dreadfully sorry, Sir John, but we have moved so speedily today that I had not appreciated that we had reached the end of the Committee proceedings. Before we finally conclude, I should like to put on record my thanks, and that of the Economic Secretary, to you for the expert way in which you have seen us through this complex Bill, which is, none the less, part of the important machinery of Government.
I thank the Clerks, as ever, for their expert advice and for ensuring that all Committee members were not only in order, but able to discuss at the relevant point what was most important to us. I thank the Hansard writers and the office holders, and the police for ensuring that we were able to hold our discussions uninterrupted. I also thank my hon. Friends, who have hung on my every word—and those of the Economic Secretary—and I am grateful for their undying support and encouragement. 
I thank the hon. Members for Chichester and for Yeovil (Mr. Laws) for the business-like way in which their colleagues approached the Bill, which showed Parliament at its best in wanting to improve the Bill and understand the objectives. 
I am pleased that we will move on to the next stage and, as I have said, I am eternally grateful to you, Sir John, and to Mr. Hurst for chairing these proceedings. I cannot quite bring myself to say that I look forward to seeing you soon on the Finance Bill; not because I do not want to see you in the Chair, but because it is coming faster than I would like. Once again, I thank you and all Committee members.

Andrew Tyrie: I thought for a moment, Sir John, that we were going to get a date for the Finance Bill.
I echo the remarks of the Paymaster General. I agree with everything she said so I shall not reiterate it or go through the list of people to whom she referred. I particularly thank you, Sir John, for the cordial way in  which you have handled things, and I should be grateful if you passed my thanks on to your colleague, Mr. Hurst. 
I also thank the Clerk, who has put up with a number of questions from me behind the scenes, in order to explain things that I did not fully understand. He also gave me great assistance in drafting the odd amendment and new clause, which would not have been remotely in such good shape were it not for him. 
In addition to thanking my colleagues—although only one is here at the moment—and the hon. Member for Yeovil, with whom I have had one or two interesting discussions, I wish to say that, on the whole, I have had some intelligent conversation with Ministers. I am pleased to say that they moved on a couple of points, not least on the oath of allegiance, which we may keep and which will contribute to good quality governance in the Revenue. 
We have made some progress, and I look forward to Report. Much more proximately, I look forward to this afternoon, when I shall be debating the Child Benefit Bill, yet another Bill that the Government have decided to impose on us just before, I expect, a general election. Thank you, Sir John, for chairing the Committee so well.

David Laws: I, too, add my thanks to you, Sir John, and to your co-Chairman Mr. Hurst, for the deft way in which you chaired our proceedings. I also thank the Clerk and all the others who have supported the Committee. I thank the Paymaster General and her colleague the Economic Secretary for the constructive way in which they engaged in the debate. Some useful progress has been made on a couple of points, including those raised by my hon. Friend the Member for Torridge and West Devon (Mr. Burnett). I enjoyed working with the constructive hon. Member for Chichester. I have a few questions for him on other announcements made by the Conservative party this week, so I should be grateful if he stayed on afterwards.

John Butterfill: I thank right hon. and hon. Members for those kind words, and I shall certainly pass them on to my colleague Mr. Hurst. I enjoyed chairing the Committee. As ever, I shall look forward to the Finance Bill, although starting from next week I shall be chairing the Committee considering the Consumer Credit Bill.

David Heathcoat-Amory: Bad luck.

John Butterfill: I am nothing if not a glutton for punishment.
Question put and agreed to. 
Bill, as amended, to be reported. 
Committee rose at twenty-three minutes past Eleven o'clock.